By Sri. A.H. Malaghan, President:-

THE BRIEF FACTS OF THE CASE:

1.       The complainant has filed this complaint against the Opposite Party U/s 12 of Consumer Protection Act with a prayer to direct the Opposite Party to make payment of the amount of Rs.3,00,000/- towards insurance claim along with interest and Rs.1,00,000/- towards damages for mental shock agony etc.

2.       The case of the complaint is that the complainant is the registered owner of TOOFAN vehicle bearing Registration No. KA-36/M-5108 commercial vehicle. This vehicle of this complainant came to be insured with Opposite Party vide policy no. 24020331114 P 109723881 which was valid from 14-03-2015 to  mid night of 13-02-2016. This policy covers all packages. On 20-05-2015 the said vehicle of the complainant met with an accident at Satyamangalam on Mysore road in Tamil Nadu. In this regard a case came to be registered by concerned police in FIR No.287/2015.

3.       The complainant alleges that, on 28-05-2015 he filed his claim petition before the Opposite Party for settlement of insurance claim for the damage of his aforesaid vehicle, since the insurance of the vehicle was in force on the date of accident and said insurance also covers the risk of accident. He has got repaired his vehicle with Bombay Auto Carriage at Tumkur by spending a sum of Rs.3,00,000/-. The relevant bills issued by said garage and automobiles are also filed herewith separate list for the kind perusal of this forum. Since then the claim application of this complainant is kept pending without any settlement. Thereafter they had sent a letter dt. 24-02-2016 repudiating the claim  by closing the file of this complainant without assigning any valid reasons. Accordingly, he had sent a legal notice to the Opposite Party calling upon him it to settle the insurance claim for the vehicle damage. The said legal notice came to be served upon the Opposite Party and despite the service the Opposite Party has neither come forward to settle the claim nor replied to said legal notice. Under these circumstances, he has been constrained to file this complaint before this forum.

4.       The complainant further alleges that, the complainant policyholder has paid the premium of said policy to the Opposite Party and the Opposite Party had received the premium amount and issued the policy bond after taking conducting the entire process and procedure. The Opposite Party instead of settling any paying the claim amount has bitterly failed to settle the claim which is totally contradictory, arbitrary to the terms of policy and deficiency of acts and service on the part of the Opposite Party. Withholding of claim amount of this complainant has affected the complainant and he has sustained mental shock, incurred expenses and suffered a lot due to wondering to the office of the Opposite Party, hence, the complainant is also entitled for damages, costs etc., from the Opposite Party in view of incurring of same by the complainant due to act of the Opposite Party under the above circumstances, this complainant having no other go in approaching this forum with this complaint for immediate Redressal.

5.       The complainant further alleges that, the facts clearly constitute the cause of action which arose to this complaint firstly when his vehicle was insured with the Opposite Party and on all subsequent dates of demand for settlement of claim and on 24-02-2016 when they have repudiated the claim and the cause of action finally arose on 03-03-2016 the date of issuing legal notice and same are continuing one within the jurisdiction of this forum. In view of the payment of policy premium with the Opposite Party at its office. They have extended the deficiency of act, service and hence the complaint is maintainable before this forum and this forum is having every power and jurisdiction to try the complaint including for passing necessary order .Hence this complaint with above stated reliefs.

6.       After service of notice to the Opposite Party, has appeared through his counsel and filed his written version stating that, the complaint is not maintainable either in law or on facts.

7.       The Opposite Party further submits that, there is no deficiency in service on the part of the Opposite Party as alleged by the complainant. Hence claim petition is not maintainable. The vehicle of the complainant which was insured with this Opposite Party bearing registration No.KA-36/M-5108 when it was met with an accident at that point of time 14 persons were travelling in the insured vehicle, which was permitted and insured to carry only 11+1 persons. Therefore there was a clear violation of the terms and conditions of the policy, hence the claim of the complainant was repudiated and his claim file was closed and the same was intimated to the complainant. Therefore, in view of the violation of policy conditions the complainant is not entitled to claim the compensation or any damages before this forum.

8.       That, assuming but not admitting soon after receipt of intimation of claim, this Opposite Party appointed surveyor to access the actual damages of the insured vehicle sustained during the accident and the surveyor assessed the loss after depreciation as Rs.76,470/- and due to violation of terms and conditions of the policy the claim of the complainant is repudiated. Therefore there is no deficiency of service on the part of this Opposite Party.  Hence, there is no question of deficiency of service or unfair trade practice on the part of the Opposite Party.  Hence he prayed to dismiss the complaint with exemplary cost.

9.      The complainant has examined as PW-1 by his evidence affidavit and he reiterated the averments of his complaint and has produced documents which are marked as Ex.P-1 to Ex.P-08.   On the other hand, the Opposite Party filed his affidavit evidence and documents marked as Ex.R-1 to
Ex.R-6.

10.    Heard the arguments on both sides and perused the records.

11.     On perusal of the above said facts, the point for consideration arose are:

1.       Whether the complainant proves that, there is a deficiency of service on the part of the Opposite Parties in settling the claim of the complainant?

2.       Whether the complainant is entitled for the reliefs claimed?

3.       What order?

12.     We answer the above points as under:

Answer to Point No.1         :  In the affirmative.

Answer to Point No.2         :  Partly in the affirmative.

Answer to Point No.3         :  As per final order.

REASONS

Point No.1 & 2:- 

13.    Both points are answered together to avoid repetition in the matter.

14.    Considering above contention of the respective parties. It is admitted fact that, the complainant is owner of the said vehicle and his said vehicle was met with an accident on 20-05-2015 in Tamil Nadu State and on the date of accident, said vehicle was covered by insurance policy issued by Opposite Party in favour of the complainant.

15.       In order to substantiate the claim of the complainant he has produced (08) documents under Ex.P-1 to Ex.P-8 coupled with evidence affidavit. On perusal of the said documents Ex.P-2 FIR confirms that, the said vehicle was met with an accident on 20-05-2015 and thereby the vehicle was damaged and a criminal case has been registered by Satyamangalam Police Station under its Crime No.287/2015. The complainant has produced series of bills under Ex.P-3, but he has not produced any documents to show that, the said receipts issued by them are the authorized service dealers/sellers of the said parts of the vehicle. Except the above said bills the complainant has not produced any mechanical/technician opinion with his certificate regarding actual loss caused to his above said vehicle after the accident, to substantiate his total claim of Rs.3,00,000/-. So in the absence of said material documents, he cannot claim the said amount from Opposite Party.

 16.    By considering the above said facts, the Opposite Party has mainly contended that, the claim of the complainant is not payable on the grounds of breach of policy condition, as the complainant was carried more passengers in the said vehicle than its seating capacity. In this regard the counsel for Opposite Party had drawn the attention of the Forum on Ex.P-2 FIR wherein it is mentioned that, 14 passengers were travelling in the said vehicle including its driver. So he claims that, it is clear violation of policy condition. But it was not the case of Opposite Party that, carrying excess passengers two in numbers against its seating (11+1 =12) is the main reasons for causing the said accident. Under such circumstances, we are of the view that, mere carrying of one or two passengers more in the said vehicle at the time of accident is not a sole reason for causing accident and also causing damage to the said vehicle. Further, same is not a fundamental or primary breach of policy conditions in any manner to avoid its total liability. In the light of above facts, we relied upon a citation of Hon’ble Supreme Court reported in: AIR 1996 page 2054 between B.V. Nagaraju V/s. Oriental Insurance Company Ltd., would directly aply to the present facts of this case, wherein their lordships have observed that;

17.      So considering the observations made by the Hon’ble Apex Court we are also of the opinion that, the repudiation of the claim of the complainant on the above ground is not justified under law. However, by considering the present facts of the case, the Opposite Party has failed to consider even “non standard” claims of the complainant. Hence, the repudiation action of Opposite Party is not proper and same is liable to be set aside and thereby the Opposite Party has caused the deficiency of service towards complainant in settling his above claim.

18.     The Opposite Party has produced the spot and final survey report under Ex.R-4 & Ex.R-5 respectively showing the details of damage caused to above vehicle and on perusal of  Ex.R-5 final survey report, the surveyor has assessed the total loss to the tune of Rs.76,117/- which is acceptable one in the absence of any contra proofs or evidence produced by the complainant. Because the surveyor appointed is a technical and authorized person and the loss assessor of the said vehicle whose version is highly believable in this case, as the complainant has not produced any other technical expert opinion against Ex.R-4 & Ex.R-5 reports to disbelieve the said documents. Hence in our view the complainant is entitled to receive the loss assessed by the final surveyor to the extent of Rs.75,117/- only after deducting a salvage value of Rs.1000/-, from Opposite Party and he is liable to indemnify the said loss to complainant as per the policy contracts.

19.     Looking to other governing circumstances of this case, in our view it is just and proper to award Rs.10,000/- towards the pain and sufferings of the complainant and Rs.3,000/- for cost of litigation in addition to above claim of the complainant, which will meet the ends of justice. So in all the Opposite Party is liable to pay Rs.75,117/- + Rs.10,000/- + Rs.3,000/- total Rs.88,117/- to complainant within two months from the date of this order. Therefore as observed, above we have answered the point no. 1 & 2 in the affirmative.

20.    Hence, we proceed to pass the following order:

ORDER

        The complaint filed by the complainant U/s 12 of the Consumer Protection Act, 1986 is allowed partly with cost against Opposite Party.

Consequently as stated above the Opposite Party is liable to pay Rs.88,117/- to the complainant along with interest at the rate of 8% p.a. from the date of this complaint, till its realization, within two months from the date of this order.

        Intimate the parties accordingly.